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Duty to accommodate - big labour movement victory

'Most of the accommodation solutions are inexpensive and don't turn the workplace upside down.'

Ottawa (1 Sept. 2010) - It used to be that if you hurt your back, your career was suddenly in jeopardy. Whether your work involved lifting heavy objects or sitting in a chair all day, your employer could simply fire you if your disability prevented you from performing 100% of your job duties.

No longer. In what legal expert Michael Lynk calls "a revolution in human rights," the Canadian labour movement has been helping promote and enforce what is known as "the duty to accommodate."

It's a legal concept that essentially means employers now have to be very flexible when it comes to workers who have a physical or mental disability. They must, in other words, help you find an acceptable solution to accommodate your disability within your job. The duty to accommodate doesn't stop there, either. Employers must also be flexible in the face of a worker's religion, race, gender or any of the other characteristics protected from discrimination by human rights legislation.

Lynk, the associate dean of law at the University of Western Ontario, is co-writing a book about the duty to accommodate. He has combed through roughly 3,000 arbitration and court decisions that have over the past two decades steadily reaffirmed and strengthened the duty to accommodate and has come to believe that they represent one of Canadian labour's most significant accomplishments.

"It's primarily because of unions that this has become such a powerful tool for human rights," Lynk said during a presentation at NUPGE's Leadership Development School last week in Keene, Ont.

"Unions have the resources and motivation to push the envelope on this issue. As a result, there have been a far greater volume of accommodation decisions from the labour arbitration process than from human rights tribunals or even the courts."

Workers and their unions have successfully invoked the duty to accommodate in a variety of ways. A few examples:

An ambulance paramedic was saved from being fired when a degenerative eye disease meant that he could no longer drive. An arbitrator ruled that the employer had a duty to accommodate his disability by allowing him to work as an "attend-only" paramedic;

A forest firefighter with good work evaluations was reinstated after being fired because she didn't pass a new physical fitness test that was designed with primarily male physiology in mind. The Supreme Court of Canada ruled the employer had a duty to accommodate the physical abilities of both men and women;

A construction technologist worker was saved from being fired when a change in his job duties suddenly required him to occasionally visit construction sites where hardhats were required. He was willing to visit the sites but, as a Sikh, was unwilling to wear a hard hat. Since he was willing to accept the personal risk, and since no other workers' safety was being put at risk, the court ruled the employer had a duty to accommodate his religious beliefs.

Not all of the cases have been so dramatic. And not every case goes the employee's way -- there are limits to how much accommodation an employer has to make. But on balance, Lynk says the duty to accommodate is making Canadian workplaces much more flexible, tolerant and healthy.

"It lays out an understandable and practical test for unions and employers to apply when an employee, and particularly an employee with a disability, requires differential treatment," says Lynk. " It leads to viable solutions (a back rest for a chair; adaptable technology for an employee with a serious sight impairment; a prayer room for Muslim employees) that the parties can shape themselves.

"And most of the accommodation solutions are inexpensive and don't turn the workplace upside down."

For workers who feel the duty to accommodate could help improve their work lives, Lynk says they should consult with their union, and document everything relevant to their claim.

And for the co-workers of an accommodated employee who regard the accommodation as unfair special treatment -- "Why don't I have the choice to not wear a hard hat?" -- Lynk urges them to reconsider. "It's the law and it's the right thing to do," he says, "but most of all, it's like an insurance policy for all of us. Statistics clearly show that all of us are at greater risk for acquiring a disability as we age. The duty to accommodate protects us from losing our jobs because of it."

NUPGE

The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE

Note: This article was written by Andy Pederson, communications officer with the Nova Scotia Government and General Employees Union (NSGEU/NUPGE). Andy was one of the 29 participants who attended NUPGE's 12th annual Leadership Development School.